Case Western Reserve Journal of International Law Volume 40 | Issue 3 2009 Security Detention - United Kingdom Practice Dominic McGoldrick Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Part of the International Law Commons Recommended Citation Dominic McGoldrick, Security Detention - United Kingdom Practice, 40 Case W. Res. J. Int'l L. 507 (2009) Available at: https://scholarlycommons.law.case.edu/jil/vol40/iss3/7 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. SECURITY DETENTION—UNITED KINGDOM PRACTICE Dominic McGoldrick* This article assesses the role of security detention within the context of a number of the United Kingdom’s anti-terrorism policies. It considers the U.K. provisions on indefinite detention and the judicial response to those policies. Close attention is given to the Prevention of Terrorism Act 2005 (PTA 2005), and in particular the detailed regime of “control orders” it introduced. The different substantive and procedural bases for judicial challenges to control orders are illustrated by reference to the leading judi- cial decisions. The challenges have principally been based on the human rights provisions in the European convention on human rights. These have been given a degree of domestic incorporation by the Human Rights Act (1998). Consideration is given to the future use of control orders and how an “exit strategy" from them could be devised. Finally, the article analyses the place of security detention within the context of other policy options that form part of an Anti-Terrorism Strategy. It is submitted that none of them is cost-free in human rights terms. I. INTRODUCTION:THE U.K. AND TERRORISM The U.K. has assumed a leadership role on the War on Terrorism, serving as the principal ally of the United States in the War on Terrorism generally, and the wars in Afghanistan and in Iraq in particular.1 The U.K.’s Security Service (MI5) monitors the activities of 200 terrorist networks, involving some 2,000 suspects.2 Its domestic anti-terrorism law is wide- ranging, highly sophisticated, and reflects a variety of anti-terrorist poli- cies.3 Under the Human Rights Act 1998 (HRA), all of that legislation can * Professor of Public International Law, Liverpool Law School, United Kingdom. 1 See Tony Blair, U.K. Prime Minister, Speech on the Threat of Global Terrorism (Mar. 5, 2004), available at http://www.pm.gov.uk/output/Page5461.asp; Tony Blair, U.K. Prime Minister, Speech on the Clash of Civilisations (Mar. 21, 2006), available at http://www.pm. gov.uk/output/Page9224.asp. 2 See Jonathan Evans, MI5 Director General, Speech on Intelligence, Counter-Terrorism and Trust (Nov. 5, 2007), available at http://www.mi5.gov.uk/output/Page562.html. 3 Some aspects of domestic law have been required by legal obligations under European and international law. See Helen Duffy, THE ‘WAR ON TERROR’ AND THE FRAMEWORK OF INTERNATIONAL LAW (2005); Frank Gregory, The EU’s Response to 9/11: A Case Study of Institutional Roles and Policy Processes with Special Reference to Issues of Accountability and Human Rights, 17 TERRORISM AND POLITICAL VIOLENCE 105 (2005). 507 508 CASE W. RES. J. INT’L L. [Vol. 40:507 now be tested for its compatibility with the European Convention on Human Rights (ECHR). The HRA represents an ingenious construction that impacts on legislative, executive and judicial powers, and involves all institutional actors in rights review.4 Under HRA Section 3, all legislation must “so far as it is possible to do so” be read and given effect in a way that is compati- ble with the ECHR.5 It if is not possible, the higher courts can issue a “dec- laration of incompatibility” under Section 4 of the HRA.6 In all cases so far, these have been followed by remedial legislation.7 Finally, under Section 6 of the HRA, it is unlawful for a public authority to act in a way which is incompatible with any Convention rights.8 In any historical circumstances the HRA would have represented a significant challenge to the U.K. consti- tutional system. The post 9/11 context has subjected the HRA to the most searching forensic testing conceivable.9 This article assesses the role of security detention within the context of a number of U.K. anti-terrorism policies. Part II considers the U.K. pro- visions on indefinite detention and the judicial response to those policies. Part III examines the Prevention of Terrorism Act 2005 (PTA 2005), and in particular the detailed regime of “control orders” it introduced. Parts IV–VI considers the different bases for judicial challenges to control orders. Part VII considers the future use of control orders. Finally, Part VIII puts securi- ty detention within the context of other policy options that form part of an Anti-Terrorism Strategy. II. CONTROLLING THE TERROR THREAT: THE ATSCA PART 4REGIME FOR INDEFINITE DETENTION Responding to the attacks of 9/11, the U.K Parliament passed the Anti-Terrorism, Crime, and Security Act of 2001 (ATCSA), which mod- ified the Terrorism Act of 2000.10 The most controversial new measures in the ATCSA were those in Part 4, entitled “Immigration and Asylum,” which permit indefinite detention for foreign nationals suspected of being interna- tional terrorists.11 These provisions required the U.K. to derogate from Ar- 4 See David Feldman, The Human Rights Act 1998 and Constitutional Processes, 19 LEGAL STUD. 165, 167–169 (1999). 5 Human Rights Act, 1998, c. 42, § 3(1) (Eng.). 6 Id. § 4(2). 7 See Wainwright v. United Kingdom, App. No. 12350/04, Eur. Ct. H.R. (2006), http://www.bailii.org/eu/cases/ECHR/2006/807.html. 8 Human Rights Act, 1998, c. 42, § 6(1) (Eng.). 9 See CONOR GEARTY,CAN HUMAN RIGHTS SURVIVE? (2006). 10 See Anti-terrorism, Crime, and Security Act, 2001, c. 24 (Eng.) [hereinafter ATCSA]; CLIVE WALKER,BLACKSTONE’S GUIDE TO THE ANTI-TERRORISM LEGISLATION 4 (2002). 11 See ATCSA pt. 4, § 29. See also AMNESTY INTERNATIONAL,UNITED KINGDOM HUMAN RIGHTS:ABROKEN PROMISE, 14 (Feb. 23, 2006), 2009] U.K. PRACTICE 509 ticle 5 of the ECHR and Article 9 of the International Covenant on Civil and Political Rights (ICCPR).12 Section 21 of ATCSA provided that the Home Secretary could certify an individual as a “suspected international terrorist” if the Secretary reasonably believed that that person’s presence in the U.K. was a threat to national security and that the Secretary suspected that the person was a terrorist.13 Once certified, a range of immigration decisions (which can only be taken against non-nationals), including an order for re- moval, could be taken by the appropriate authorities even though the person could not be removed for legal or practical reasons.14 Interestingly, the prin- cipal legal reason would normally be that it was contrary to the ECHR to remove an individual who presented substantial evidence that he would face a real risk of treatment incompatible with the ECHR.15 In the anti-terrorist context, this would normally be ill-treatment or the death penalty, but in principle it could extend to other rights.16 Of the seventeen persons that were detained under the Part 4 re- gime, only one person won an appeal against certification.17 According to Amnesty International, “most of the ATCSA detainees were held in the High Security Unit (USU) in Belmarsh” prison.18 Amnesty International concluded that those held at Belmarsh suffered conditions that amounted to cruel, inhuman and degrading treatment, and that the conditions had led to a serious deterioration of their physical and mental health.19 There also was evidence that the conditions of detention were causing psychiatric prob- lems.20 Legally, the detainees could have left at any time (hence it was re- ferred to as a “three wall prison”) if they were willing to return to a place where they would face a real risk of serious ill-treatment.21 Although two individuals did just this, it was not be realistic to expect detainees make this available at http://www.amnesty.org/en/library/info/EUR45/004/2006 [hereinafter AMNESTY INTERNATIONAL]. 12 See ATCSA pt. 4, § 30. See also AMNESTY INTERNATIONAL, supra note 11, at 14–15. 13 See ATCSA, c. 24, pt. 4, § 21 (Eng.). 14 See id. pt. 4, § 22. 15 It could also have been that they satisfied the criteria for being granted asylum. 16 See Regina v. Sec’y of State for the Home Dep’t, [2004] UKHL 27 (appeal taken from Eng.); see also Regina v. Special Adjudicator, [2004] UKHL 26 (appeal taken from Eng.); EM (Lebanon) v. Sec’y of State for the Home Dep’t, [2008] UKHL 64 (appeal taken from Eng.) (deportation would violate Article 8 ECHR). 17 See Who are the Terror Detainees?, BBC NEWS, Mar. 11, 2005, http://news.bbc.co.uk/2 /hi/uk_news/4101751.stm (detailing the detainees’ national origins and the allegations with which they are faced). 18 AMNESTY INTERNATIONAL, supra note 11, at 21 19 Id. at 21–23. 20 Id. 21 See id. at 14. 510 CASE W. RES. J. INT’L L. [Vol. 40:507 choice. By the time of the decision of the House of Lords in the Belmarsh Detainees Case, those detained had already been held for three and a half years and faced the prospect of indefinite detention.22 The detention system in ATCSA was challenged in A (FC) and Others v.